How We Can Help

What follows below on this page is a summary of the key points of our guide--including the important Workflow.

So, are you ready to get started? You've come to the right place!

From the beginning of the writing process all the way to submitting and publishing your dissertation or thesis, this page will walk you through addressing copyright and other legal considerations based on the content you're using in your dissertation. It will also help you address related questions once you're finished writing, including considerations about posting (publishing) your dissertation online, and the intellectual property rights you'll walk away with as an author.

Why do you need to think about copyright and publishing questions?

Are you using materials created by other people in your dissertation? Perhaps you're using photos, text excerpts, scientific drawings, or diagrams? You might need the authors' permission to include them, because you will be publishing your dissertation online when you submit it to the UC Berkeley Graduate division.

Are you using materials from an archive? You might have signed agreements or accepted terms of use that affect what you can publish from those materials.

Are you publishing information about particular living individuals? You might need to consider their privacy rights.

Once you've finished writing, do you have questions about what you own, and what your rights as an author are?

Do you have questions about whether to embargo your dissertation if you don't want it read by the public immediately for certain reasons?

How can you answer these kinds of questions? That's where the workflow can help.

Applying the Workflow

Step 1: Do you need permission first to include someone else’s work online?

You don’t need the copyright holder’s permission to include an excerpt / photo / diagram / whatever-you’re-using if any one of the following is true:

The copyright holder has already granted a license for you to include their work. Sometimes, authors have already provided permission through grants such as Creative Commons licenses. For instance, this is a photo of a hot air balloon that can be used for any purpose as long as you attribute the author because it has a Creative Commons Attribution, or CC-BY license, applied to it.

The work is in the public domain. Public domain works are open for use with no permission needed. Just because a work is online does not mean it’s in the public domain. Rather, public domain refers to works for which copyright protections have expired, or works that were ineligible for protection in the first place (facts, ideas, federal government materials, etc.).

Publishing the content would be fair use. Fair use—which is meant to encourage teaching, research, scholarship, criticism, and parody—allows you to exercise otherwise-exclusive rights of the copyright holder (distribution, creating adaptations, etc.) without having to seek the copyright holder’s permission. For a use to be fair, you have to consider four factors that collectively weigh in favor of “fair use.” Records of your fair use analysis—which you can create by filling out a checklist—can be very helpful to have on hand if there are ever questions about your reasoning or use.

Remember: A copyright holder’s silence is not permission. If you do not hear back in response to your request, you are now faced with a question of risk assessment, and whether to keep seeking permission or embrace the likelihood (or not) of the rights holder challenging your use down the road. In some of these situations, you may ultimately decide to limit your use further, or use a different work entirely—but you’ll need to make a decision one way or the other.

Step 3: What about other non-copyright legal or policy concerns?

Human subject research methodology, issues of indigenous knowledge, and other ethical concerns are best discussed with your dissertation advisors and institutional review boards. But the workflow does address a few other legal questions that at first might seem like copyright questions, yet actually pertain to different legal doctrines.

Contracts & Terms of Use

One key non-copyright legal issue that often comes up in the context of scholarship is contract law. If you are using materials from archives, museums, library special collections, you may need to consider website terms of use agreements or contracts you signed (or clicked through online) with the archival institution. This is because, irrespective of whether the materials are protected by copyright, you may have entered into an agreement dictating whether or not you can include material from the works.

So, read carefully any agreement or website terms of use that you are asked to agree to. Inquire with the library or archives directly about whether a waiver is possible if you need one, or seek additional information from them about securing the right to publish.

Privacy Rights

Additionally, while copyright protects copyright holders’ property rights in their works, privacy law protects the interests of people who are the subjects of those works. Privacy rights in scholarship most often arise if you are seeking to use third party content like correspondence, diaries, and images that contain personal information about or pictures of particular people. But, they expire at death—meaning, you can’t be liable for disclosing private facts about a person no longer living.

There are typically two additional important defenses to claims for invasion of privacy: newsworthiness and permission. If the material you wish to include reveals private facts that are of public interest or concern (which your dissertation scholarship may be) or if the person who is the subject of the information has given you permission to include it (which you may have obtained), then an invasion of privacy claim should not be sustainable.

Publicity Rights

Publicity rights are also tied to the subject (i.e. person) who is depicted in the work. As with privacy torts, there is no generally-applicable rule across U.S. jurisdictions. If a state recognizes the "right of publicity," such laws typically prevent unauthorized commercial use of an individual’s name, likeness, or personal attributes. Unlike privacy rights, publicity rights usually survive an individual's death, such that a person's estate may enforce them even if the person is no longer alive. Further, remember that the right of publicity is a protection independent from copyright. Thus, even if photographs of a famous historical figure may be in the public domain, that person's estate may still choose to enforce publicity rights against unauthorized commercial appropriation of his/her likeness.

Remember the important limitation on publicity rights: They are typically intended to prevent unauthorized commercial use of one's identity. Thus, they are often inapplicable unless you, say, collect royalties or publish a book.

Step 4: Address publication issues.

If you are a Berkeley graduate student, your dissertation will be made available through ProQuest and/or published open access online in eScholarship and via the Library's catalog. There are some issues to consider before clicking “submit”:

Should you embargo your dissertation? Making your work available to be read online immediately has many advantages. Not only does it establish when your work was created and published (which can help combat plagiarism), but also it can help build your academic reputation. There are circumstances, however, that would warrant an embargo—such as situations where there would be disclosure of patentable rights or there are ethical concerns, or a book/journal publisher has demanded it. You should consult guidance from your advisors about when embargos are recommended. For instance, here are UC Berkeley’s guidelines on embargoes.

Do you want to license your work beyond fair use? As with any other copyrighted work, other scholars can make fair use of your dissertation in their own research. You can also decide to license your work beyond what fair use allows by applying a Creative Commons license to it. This should be a careful decision, which you discuss fully with your dissertation advisors and journal or monograph publishers in your field. There may be discipline-specific reasons to decide to—or not to—license your work, so examine them closely.

Once you get into the groove of answering these workflow questions, you’ll become a pro at addressing copyright and other policy issues in all of your subsequent scholarship, too. Perhaps the most important point to keep in mind is: Start early, since this workflow can take some time.